Terms of Use

PLEASE READ THESE TERMS OF USE (“AGREEMENT” OR “TERMS OF USE”) CAREFULLY BEFORE USING THE WEBSITE, MOBILE APPLICATIONS, AND SERVICES OFFERED BY ALL THINGS MALIBU, LLC (“ATM”). THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE WEBSITE AT WWW.ALLTHINGSMALIBU.COM (THE “SITE”), MOBILE APPLICATIONS, AND SERVICES PROVIDED BY ATM (COLLECTIVELY, THE “SERVICES”).

By using the Services in any manner, including but not limited to visiting or browsing the Site, you (the “user” or “you”) agree to be bound by this Agreement,This Agreement applies to all users of the Services, including without limitation users who are vendors, customers, merchants, contributors of content, information and other materials or services on the Site.

Effective January 1, 2015: the Agreement is between you and ATM.

1. ATM is a Venue

With regard to products for sale, ATM acts as a venue to allow users who comply with ATM’s policies to offer, sell and buy certain goods. ATM is not directly involved in the transaction between buyers and sellers. As a result, ATM has no control over the quality, safety, morality or legality of any aspect of the items listed, the truth or accuracy of the listings, the ability of sellers to sell items or the ability of buyers to pay for items. While ATM does pre-screen vendors, it does not other users or the content or information provided by those users or vendors. ATM cannot ensure that a buyer or seller will actually complete a transaction. Consequently, ATM does not transfer legal ownership of items from the seller to the buyer.

You agree that ATM is a venue and as such is not responsible or liable for any content, for example, data, text, information, usernames, graphics, images, photographs, profiles, audio, video, items, and links posted by you, other users, or outside parties on ATM. You use the ATM service at your own risk.
With regard to services advertised on ATM, ATM is not responsible or liable for any service you seek or contract for. As with products, you use the ATM services at your own risk.

2. Eligibility

Age: ATM’s services are available only to, and may only be used by, individuals who are 18 years and older who can form legally binding contracts under applicable law. You represent and warrant that you are at least 18 years old and that all registration information you submit is accurate and truthful. ATM may, in its sole discretion, refuse to offer access to or use of the Services to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Services is revoked in such jurisdictions.

Individuals under the age of 18 must at all times use ATM’s services only in conjunction with and under the supervision of a parent or legal guardian who is at least 18 years of age. In all cases, the adult is the user and is responsible for any and all activities.

Compliance: You agree to comply with all local laws regarding online conduct and acceptable content. You are responsible for all applicable taxes. In addition, you must abide by ATM’s policies as well as all other operating rules, policies and procedures that may be published from time to time on the Site by ATM, each of which is incorporated herein by reference and each of which may be updated by ATM from time to time without notice to you.

Password: Keep your password secure. You are fully responsible for all activity, liability and damage resulting from your failure to maintain password confidentiality. You agree to immediately notify ATM of any unauthorized use of your password or any breach of security. You also agree that ATM cannot and will not be liable for any loss or damage arising from your failure to keep your password secure. You agree not to provide your username and password information in combination to any other party other than ATM without ATM’s express written permission.

Account Information: You must keep your account information up-to-date and accurate at all times, including a valid email address.

Account Transfer: You may not transfer or sell your ATM account and User ID to another party. You are responsible for all activity of the account and User ID. If you are registering as a business entity, you personally guarantee that you have the authority to bind the entity to this Agreement.

Right to Refuse Service: ATM’s services are not available to temporarily or indefinitely suspended ATM members. ATM reserves the right, in ATM’s sole discretion, to cancel unconfirmed or inactive accounts. ATM reserves the right to refuse service to anyone, for any reason, at any time.

3. Listing and Selling

Listing Description: All listings of products on ATM must be for sale. By listing an item on the Site you warrant that you and all aspects of the item comply with ATM’s published policies. You also warrant that you may legally sell the item. You must accurately describe your item and all terms of sale in your ATM shop. Your listings may only include text descriptions, graphics, pictures and other content relevant to the sale of that item. All items must be listed in an appropriate category with appropriate tags. Each listing must accurately and completely describe the item/items for sale in that listing. If the “in stock” quantity is more than one, all items in that listing must be identical. Each unique item must have its own listing.

Return Policies: All sellers are responsible for any and all returns in accordance with ATM’s Revenue Sharing Agreement.

Binding Sale: Sellers are responsible for accurately listing their items, and buyers are responsible for reading the description of items before making a purchase. All sales are binding. The seller is obligated to ship the order or otherwise complete the transaction with the buyer in a prompt manner, unless there is an exceptional circumstance, such as: (a) the buyer fails to meet the terms of the seller’s listing (such as payment method), or (b) the seller cannot authenticate the buyer’s identity. The buyer is obligated to deliver appropriate payment for items purchased, unless there is an exceptional circumstance.

Fee Avoidance: The price stated in each item listing description must be an accurate representation of the sale. Sellers may charge reasonable shipping and handling fees to cover the costs for packaging and mailing the items. Sellers may not charge excessive shipping fees or otherwise avoid fees. You may not alter the item’s price after a sale for the purpose of avoiding ATM transaction fees, misrepresent the item’s location, or use another user’s account without permission.

4. Prohibited, Questionable and Infringing Items and Activities

You are solely responsible for your conduct and activities on and regarding to ATM and any and all data, text, information, usernames, graphics, images, photographs, profiles, audio, video, items, and links (together, “Content”) that you submit, post, and display on ATM.

Restricted Activities:
Your Content and your use of ATM shall not:

Be false, inaccurate or misleading.

Be fraudulent or involve the sale of illegal, counterfeit or stolen items
Infringe upon any third-party’s copyright, patent, trademark, trade secret or other proprietary or intellectual property rights or rights of publicity or privacy

Violate this Agreement, any site policy or community guidelines, or any applicable law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising)

Contain items that have been identified by the U.S. Consumer Products Safety Commission (CPSC) as hazardous to consumers and therefore subject to a recall

Be defamatory, trade libelous, unlawfully threatening, unlawfully harassing, impersonate or intimidate any person (including ATM staff or other users), or falsely state or otherwise misrepresent your affiliation with any person, through for example, the use of similar email address, nicknames, or creation of false account(s) or any other method or device

Interfere with a seller’s business or shop

Take any action that may undermine online reviews or feedback

Be obscene or contain any pornography

Contain or transmit any code of a destructive nature that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information

Host images not part of a listing

Modify, adapt or hack ATM or modify another website so as to falsely imply that it is associated with ATM;

Appear to create liability for ATM or cause ATM to lose (in whole or in part) the services of ATM’s ISPs or other suppliers

Link directly or indirectly, reference or contain descriptions of goods or services that are prohibited under this Agreement or other policy documents as posted on ATM.

Furthermore, you may not list any item on ATM (or consummate any transaction that was initiated using ATM’s service) that, by paying to ATM the agreed upon fee could cause ATM to violate any applicable law, statute, ordinance or regulation, or that violates the Terms of Use.

5. Content

License: ATM does not claim ownership rights in your Content. You grant ATM a license solely to enable ATM to use any information or Content you supply ATM with, so that ATM is not violating any rights you might have in that Content. You grant ATM a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise the copyright, publicity, and database rights (but no other rights) you have in the Content, in any media now known or not currently known, with respect to your Content. You agree to allow ATM to store, translate, or re-format your Content on ATM and display your Content on ATM in any way ATM chooses. ATM will only use personal information in accordance with ATM’s Privacy Policy.

As part of a transaction, you may obtain personal information, including email address and shipping information, from another ATM user. Without obtaining prior permission from the other user, this personal information shall only be used for that transaction or for ATM-related communications. ATM has not granted you a license to use the information for unsolicited commercial messages or unauthorized transactions. Without limiting the foregoing, without express consent from the user, you are not licensed to add any ATM user to your email or physical mail list. For more information, see ATM’s Privacy Policy.
Re-Posting Content: By posting Content on ATM, it is possible for an outside website or a third party to re-post that Content. You agree to hold ATM harmless for any dispute concerning this use. If you choose to display your own ATM-hosted image on another website, the image must provide a link back to its listing page on ATM.

Idea Submissions: ATM considers any unsolicited suggestions, ideas, proposals or other material submitted to it by users via the Site, mobile applications, or otherwise (other than the Content and the tangible items sold on the Site by users) (collectively, the “Material”) to be non-confidential and non-proprietary, and ATM shall not be liable for the disclosure or use of such Material. If, at ATM’s request, any member sends Material to improve the site (for example through the Forums or to customer support), ATM will also consider that Material to be non-confidential and non-proprietary and ATM will not be liable for use or disclosure of the Material. Any communication by you to ATM is subject to this Agreement. You hereby grant and agree to grant ATM, under all of your rights in the Material, a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully-paid, sublicensable and transferable right and license to incorporate, use, publish and exploit such Material for any purpose whatsoever, commercial or otherwise, including but not limited to incorporating it in the API, documentation, or any product or service, without compensation or accounting to you and without further recourse by you.

6. Information Control

ATM does not control the Content provided by users that is made available on ATM. You may find some Content to be offensive, harmful, inaccurate, or deceptive. There are also risks of dealing with underage persons or people acting under false pretense.
Additionally, there may also be risks dealing with international trade and foreign nationals. By using ATM, you agree to accept such risks and that ATM (and ATM’s officers, directors, agents, subsidiaries, joint ventures and employees) is not responsible for any and all acts or omissions of users on ATM. Please use caution, common sense, and practice safe buying and selling when using ATM.
Other Resources: ATM is not responsible for the availability of outside websites or resources linked to or referenced on the Site. ATM does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. You agree that ATM shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such websites or resources.

7. Resolution of Disputes and Release

Disputes with ATM: In the event a dispute arises between you and ATM, please contact ATM. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Los Angeles County, California, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. The prevailing party in any arbitration or other proceeding arising under this Agreement shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts or state courts located in Los Angeles County, California. Use of the Services is not authorized in any jurisdiction that does not give effect to all provisions of the Agreement, including without limitation, this section. You and ATM agree that any cause of action arising out of or related to the Services (including, but not limited to, any services provided or made available therein) or this Agreement must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.

Disputes with Users or Third Parties: In the event a dispute arises between you and another user or a third party, ATM encourages you to contact the user or third party to resolve the dispute amicably.
If a buyer and seller are unable to resolve a dispute resulting from a transaction that occurs on ATM, they may choose to participate in ATM’s case system in order to resolve the dispute. Cases are escalated for review and resolution by ATM. ATM provides its dispute resolution process for the benefit of users. ATM does so in ATM’s sole discretion, and ATM has no obligation to resolve disputes between users or between users and outside parties. To the extent that ATM attempts to resolve a dispute, ATM will do so in good faith based solely on ATM’s policies. ATM will not make judgments regarding legal issues or claims.

You may also report user-to-user disputes to your local law enforcement, postmaster general, or a certified mediation or arbitration entity, as applicable.
You release ATM and its officers, directors, agents and employees from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with disputes with one or more users, or an outside party.

8. ATM’s Intellectual Property

ATM, and other ATM graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks or trade dress of ATM in the U.S. and/or other countries. ATM’s trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names or email addresses, in connection with any product or service in any manner that is likely to cause confusion.

9. Access and Interference

ATM may contain robot exclusion headers which contain internal rules for software usage. Much of the information on ATM is updated on a real-time basis and is proprietary or is licensed to ATM by ATM’s users or third-parties. You agree that you will not use any robot, spider, scraper or other automated means to access ATM for any purpose whatsoever, except to the extent expressly permitted by and in compliance with this Term of Use or without ATM’s prior express written permission. Additionally, you agree that you will not:
Take any action that imposes, or may impose, in ATM’s sole discretion, an unreasonable or disproportionately large load on ATM’s infrastructure
Copy, reproduce, modify, create derivative works from, distribute or publicly display any user Content (except for your Content) or other allowed uses from the Site except to the extent expressly permitted by and in compliance with ATM’s Terms of Use otherwise without the prior express written permission of ATM and the appropriate third party, as applicable
Interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site
Bypass ATM’s robot exclusion headers or other measures ATM may use to prevent or restrict access to ATM

10. Breach

Without limiting any other remedies, ATM may, without notice, and without refunding any fees, delay or immediately remove Content, warn ATM’s community of a user’s actions, issue a warning to a user, temporarily suspend a user, temporarily or indefinitely suspend a user’s account privileges, terminate a user’s account, prohibit access to the Site, and take technical and legal steps to keep a user off the Site and refuse to provide services to a user if any of the following apply:
ATM suspects (by information, investigation, conviction, settlement, insurance or escrow investigation, or otherwise) a user has breached this Agreement or other policy documents and community guidelines incorporated herein; ATM is unable to verify or authenticate any of your personal information or Content; or ATM believes that a user is acting inconsistently with the letter or spirit of ATM’s policies, has engaged in improper or fraudulent activity in connection with ATM or the actions may cause legal liability or financial loss to ATM’s users or to ATM.
ATM reserves the right to suspend and/or terminate a person’s account or any accounts held by that person by virtue of association, including all usernames under which that person operates on ATM.

11. Privacy

ATM will not sell or disclose your personal information to third parties without your explicit consent. ATM stores and processes Content on computers located in the United States that are protected by physical as well as technological security.

12. No Warranty

ATM, ITS MANAGERS, EMPLOYEES, AND ATM’S SUPPLIERS PROVIDE ATM’S WEB SITE AND SERVICES “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. ATM, ITS MANAGERS, EMPLOYEES AND ATM’S SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM ATM SHALL CREATE ANY WARRANTY. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.

13. Liability Limit

IN NO EVENT SHALL ATM, AND ITS MANAGERS, EMPLOYEES OR ATM’S SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SITE, ATM’S SERVICES, OR THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BODILY INJURY, EMOTIONAL DISTRESS, OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
ATM’S LIABILITY, AND ITS MANAGERS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO ATM IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) $100. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

14. Indemnity

YOU AGREE TO INDEMNIFY AND HOLD ATM AS WELL AS ITS MANAGERS, AGENTS, AND EMPLOYEES, HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEYS’ FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR BREACH OF THIS AGREEMENT OR THE DOCUMENTS IT INCORPORATES BY REFERENCE, OR YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF A THIRD PARTY.

15. No Guarantee

ATM does not guarantee continuous, uninterrupted access to the Site, and operation of the Site may be interfered with by numerous factors outside ATM’s control.

16. Legal Compliance; Taxes

You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Site and any ATM service and, if applicable, your listing, purchase, solicitation of offers to purchase, and sale of items. In addition, you shall be responsible for paying any and all taxes applicable to any purchases or sales of items you make using the Services (excluding any taxes on ATM’s net income).

17. Severability

If any provision of this Agreement is held unenforceable, then such provision will be modified to reflect the parties’ intention. All remaining provisions of this Agreement shall remain in full force and effect.

18. No Agency

You and ATM are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.

19. ATM Service

ATM reserves the right to modify or terminate the ATM service for any reason, without notice, at any time. ATM reserves the right to alter these Terms of Use or other Site policies at any time, so please review the policies frequently. If ATM makes a material change ATM will notify you here, by email, by means of a notice on our home page, or other places ATM deems appropriate. What constitutes a “material change” will be determined at ATM’s sole discretion, in good faith, and using common sense and reasonable judgment.

20. Choice of Law

This Agreement shall in all respects be interpreted and construed with and by the laws of the State of California, excluding its conflicts of laws rules, and the United States of America.

21. Notices

Except as explicitly stated otherwise, any notices shall be given by e-mail to contact@allthingsmalibu.com. ATM may give you notice by e-mail or at its discretion by certified mail, postage prepaid and return receipt requested, to the address provided to ATM. In such case, notice shall be deemed given three days after the date of mailing.